The Next Supreme Court Majority ; with Several Justices Likely to Retire, the Next President May Have A

Article excerpt

The 2000 presidential election is emerging as a potential
watershed event that may redraw the composition of the US Supreme
Court and set a national agenda that will influence Americans for
generations to come.

It will involve political, ideological, and legal battles over
the full range of hot-button issues, including abortion, school
prayer, affirmative action, school vouchers, and the federal-state
power balance.

Estimates by both Democratic and Republican candidates are that
two to five justices may step down in the next four years. Such a
wholesale exodus from the bench would be unprecedented in Supreme
Court history, where the trend has been toward aging justices
clinging to their powerful lifetime appointments for as long as
possible.

But with the court precariously balanced with 5 to 4 votes on a
wide range of national questions, a single appointment could
immediately and substantially change the course of constitutional
law and radically alter America's future, legal analysts say.

"There is no question but that the Supreme Court is one of the
larger and more significant prizes in the presidential election,"
says Douglas Kmiec, a constitutional-law professor at Pepperdine
University in Malibu, Calif. "If you look at the present court's
predisposition, they are uniformly 5 to 4. Both sides have a great
deal to gain or lose by the composition of the third branch."

No retirement announcements have been made, but speculation among
court watchers is that Chief Justice William Rehnquist may choose to
step down should a Republican win the presidency in November.
Similar speculation has Justice John Paul Stevens retiring if a
Democrat wins.

It is impossible to know who each of the candidates might
appoint, if elected, but public statements offer clues as to what
type of candidate they might favor.

For instance Texas Gov. George W. Bush has said he would seek out
justices in the same mold as Antonin Scalia and Clarence Thomas, the
two most conservative justices on the court. Even a single
appointment along those lines, replacing a more liberal justice like
Stevens, would substantially embolden the court's federalism
decisions and could lead to landmark opinions in affirmative-
action, school-voucher, and school-prayer cases.

Arizona Sen. John McCain also names Justices Scalia and Thomas as
models. But he adds to the list Chief Justice Rehnquist and Justice
Sandra Day O'Connor, who hails from Senator McCain's home state and
supported the court's abortion decision in the landmark Roe v. Wade
in subsequent, affirming cases.

Many legal analysts aren't taking the Bush and McCain references
to Scalia and Thomas too seriously. They say such statements are
attempts to appeal to conservative voters during the Republican
primary, and that suggested appointees may grow more moderate in the
general election.

Court's shift to the right

On the Democratic side, candidates are using the prospect of
Supreme Court appointments to light a fire under liberals who
watched the court grow more conservative in recent decades.

"In 1975, if someone predicted that John Paul Stevens would be
the most liberal justice on the Supreme Court, people would have
laughed, because when he came on the court he was considered a
moderate conservative," says Sheldon Goldman, a political scientist
at the University of Massachusetts at Amherst. …